Can a buyer use ‘force majeure’ as an excuse to break or breach a contract, such our economic recession or depression?

Generally, no.  Under Pennsylvania law, to use a force majeure clause as an excuse for non-performance, the event alleged as an excuse must have been beyond the party’s control and not due to any fault or negligence by the non-performing party.  Negligence requires the ability to foresee the events that may prevent performance.  If an event was foreseeable but the nonperforming party ignored the warnings, then ‘force majeure’ is not an excuse for nonperformance.  Furthermore, the non-performing party has the burden of proof as well as a duty to show what action was taken to perform the contract, regardless of the occurrence of the excuse.   It is not an excuse for slacking off.   In addition, most contracts a define ‘force majeure’ by listing specific events that the parties agree are allowable excuses for nonperformance, such as labor strikes or work stoppage.

In the case of an economic depression, it would be hard for a party to argue that a repression was not foreseeable.  Experts have been predicting a repression for many months; even Former President Bush, hinted that the economy was in trouble. 

As a business owner, what can you do if you have signed contract that you cannot perform? In other words, you have made a promise that you must now break?  Negotiation is your best tool.   Contact the other party, explain the situation, and negotiate some solutions. It may help to have a strategy-planning meeting with your attorney, prior to contacting the other party. 

While employing the ‘force majeure’ clause, may not be a viable solution, you have several other options.  Good luck.